State v. Mayo

LOUIS B. BUTLER, JR., J.

¶ 68. (concurring). A unanimous court concludes that defense counsel's failure to conduct any independent investigation amounted to deficient performance under the circumstances. Majority op., ¶¶ 3, 59, 62, 66. See also Chief Justice Abrahamson's dissent, ¶¶ 89, 91, 95, 106. At issue is whether the defendant has shown that counsel's deficiency prejudiced the defense. Wiggins v. Smith, 539 U.S. 510, 521 (2003). "The defendant must show *678 that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694 (1984).

¶ 69. Because the defendant has failed to show that a reasonable probability exists that the result of the proceeding would have been different, 1 I join the majority opinion. That does not mean that I agree that defendant has not been prejudiced here; he has. His attorney admitted that he did no independent investigation. Potential witnesses have thus been forever lost. Absent any additional witnesses, defendant has consequently failed to meet his requisite burden of showing the level of prejudice needed to overturn the conviction. I write separately because this case illustrates the difficulties this court has in determining whether the defendant can ever show the requisite amount of prejudice necessary to overturn a conviction when a defense attorney fails to investigate the case, and potential evidence favorable to the defense is forever lost.

¶ 70. The United States Supreme Court has recognized that the American Bar Association Standards for Criminal Justice regarding a lawyer's duty to investigate provide as follows:

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admis *679 sions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty.

Rompilla v. Beard, 545 U.S. 374, 387 (2005) (quoting 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.)). See also State v. Love, 2005 WI 116, ¶ 40 , 284 Wis. 2d 111 , 700 N.W.2d 62 . Applying that standard, the United States Supreme Court has held counsel's performance in a capital sentencing proceeding to be deficient where counsel failed to examine a defendant's prior conviction file or transcript of the victim's testimony. Rompilla, 545 U.S. at 389-90 . Similarly, the Court has held counsel's performance to be deficient in a capital sentencing proceeding where counsel, without a strategic basis for the decision, failed to look beyond the presentence investigation report and Department of Social Service records for mitigating evidence. Wiggins, 539 U.S. at 527-28, 532-34 .

¶ 71. In both cases, the United States Supreme Court held that counsel's deficient performance was also prejudicial. Critical to the majority's determination of prejudice in this case is why the United States Supreme Court reached that conclusion.

¶ 72. In Wiggins , the mitigating evidence that counsel failed to investigate was described by the Court as "powerful." 539 U.S. at 534 . Defendant presented postconviction testimony concerning an elaborate social history report a licensed social worker had prepared containing evidence of physical torment, sexual molestation and repeated rape defendant suffered at the hands of his mother and while in the care of a series of foster parents. Id. at 516, 535 . The report also documented that he was homeless for a period, and had diminished mental capacities. Id. at 535 . The Court concluded that had the jury been able to place the *680 defendant's "excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance." Id. at 537 .

¶ 73. Similarly, in Rompilla , defense counsel at trial failed to investigate "pretty obvious signs" that defendant had a troubled childhood and suffered from mental illness and alcoholism, relying instead on defendant's own description of an unexceptional background. 545 U.S. at 379 . Postconviction counsel pointed out that trial counsel never examined school records, juvenile and adult incarceration records, or evidence of a history of alcohol dependence, and failed to examine the court file of defendant's prior conviction, which included the transcript of the victim's testimony. Id. at 382-83 . This latter point the court found dispositive. Id.

¶ 74. The Court concluded that had defense counsel looked at the prior conviction file, "it is uncontested they would have found a range of mitigation leads that no other source had opened up." Id. at 390. The files contained an evaluation that showed defendant had a history of alcohol abuse, showed indications of schizophrenia and other mental disorders, and was tested at a third-grade level of cognition after nine years of schooling. Id. at 390-91. The file further showed that defendant's parents were both chronic alcoholics; that his father had a vicious temper and frequently beat defendant's mother; that his parents fought violently, his mother once stabbing his father; and that his father beat him when he was young with leather straps, belts and sticks. Id. at 391-92. The file further showed that the defendant and his brother were locked in a small wire mesh dog pen that was filthy and excrement filled, *681 and that the defendant was not allowed to visit other children or talk to anyone on the phone. Id. at 392.

¶ 75. The jury never heard this evidence. Id. Postconviction counsel, on the other hand, used this information never seen by trial counsel to do further testing of the defendant. Id. The Court concluded that the undiscovered mitigating evidence might well have influenced the jury's appraisal of defendant's culpability. Id. at 393.

¶ 76. In both Wiggins and Rompilla , postconviction counsel presented the evidence that would have made a difference in the outcome of the earlier proceeding that was not discovered because trial counsel failed to conduct an adequate investigation. Thus, the Court did not have to speculate as to what the undiscovered evidence might have shown in assessing the prejudice prong of Strickland .

¶ 77. We have similarly held that a postconviction motion in an ineffective assistance of counsel setting must allege material facts that allow a reviewing court to meaningfully assess defendant's claims. Love, 284 Wis. 2d 111, ¶ 27 . A postconviction motion will be sufficient if it alleges within the four corners of the motion "the five 'w's' and one 'h'; that is, who, what, where, when, why, and how." Id. (quoting State v. Allen, 2004 WI 106, ¶ 23 , 274 Wis. 2d 568 , 682 N.W.2d 433 ). Applying that standard, we concluded that where defense counsel failed to investigate a phone call from the county jail to defendant's mother from an identified individual claiming to have knowledge of the robbery defendant was convicted of, those alleged facts, if true, would entitle defendant to relief. Id., ¶¶ 22, 39-42. Our approach is therefore consistent with that which was taken in Wiggins and Rompilla . Postconviction counsel presented the missing evidence that trial counsel failed *682 to investigate, giving the appellate court the ability to assess the damage done by trial counsel's deficient performance. We are simply not in a position to speculate about the existence of witnesses that have not been identified, and what these witnesses might have said if defense counsel had discovered these witnesses by conducting a proper investigation prior to trial. See majority op., ¶ 62.

¶ 78. So what does that leave us with here? As the Chief Justice points out, we have a "he-said-he-said" case. Chief Justice Abrahamson's dissent, ¶ 99. The victim testified that he was robbed of 35 dollars at gunpoint by defendant Mayo. Mayo, on the other hand, testified that the victim shorted him in a drug deal gone bad, and that when the victim refused to return Mayo's 35-dollar purchase price, Mayo struck, kicked and stomped the victim while getting his money back. Price and Mayo also gave conflicting stories about what had occurred the next day outside a taco restaurant concerning whether the victim and a companion had attacked Mayo with a tire iron. No one other than these two testified. The testimony of additional witnesses who may have seen either of the altercations between Mayo and Price may well have affected the outcome in this "he-said-he-said" case.

¶ 79. Unfortunately, trial counsel did not speak to the victim's friend named Jarrell or Jarrell's mother, even though the victim went to Jarrell's house just after the robbery, as the robbery occurred nearby. Trial counsel never interviewed anyone that might have been at the restaurant the next night when the tire iron incident occurred. Trial counsel admitted that he conducted no independent investigation, did not hire an investigator, and spoke to no potential witnesses other than Mayo.

*683 ¶ 80. Appellate counsel was unable to produce any witnesses at the postconviction hearing who could testify about the events surrounding the robbery. While appellate counsel did produce a potential witness, McMorris, concerning the altercation that occurred the night after the robbery, McMorris did not see that altercation, and merely had information provided to her by Mayo as to what he told her that night. Thus, unlike the situations presented in Love, Wiggins and Rompilla , we are left to speculate about whether potential witnesses to the robbery exist and what they might say.

¶ 81. The net effect of trial counsel's failure to investigate is that Mayo was ultimately deprived of any opportunity to mount a credible defense. In my view, that amounts to prejudice. Yet I agree with the majority that the prejudice incurred does not meet the standard required for a new trial under Strickland . The result in this case, while legally correct, should disturb us all.

Majority op., ¶ 59.